Y.V.D.M v W.P.V.D.M (2021/43213)  ZAGPJHC 1280 (9 November 2023)
Case Background: This case involved an application under Rule 43 of the Uniform Rule of Court, related to a pending divorce action. The plaintiff, who was also the applicant, sought maintenance for herself and for her two adult children born from the marriage. The application was opposed by the respondent, who was the defendant in the main divorce action.
Relief Sought by the Applicant: The applicant had detailed her demands for maintenance, which included:
- A monthly maintenance of R 84,000 for herself, along with arrear maintenance of R 180,000.
- Coverage of medical aid premiums, excess medical and dental expenses, and her cellular telephone and data costs.
- Payment of municipal rates and taxes for several properties.
- For the daughter, a monthly maintenance of R 20,000, university fees, vehicle insurance, medical aid coverage, and cellular costs.
- For the son, a monthly maintenance of R 15,000, rental accommodation costs, university fees, vehicle insurance, medical aid coverage, and cellular costs.
- An annual increase in these amounts by 6%.
- The respondent was also required to reimburse any medical and dental expenses not covered by the medical aid scheme.
Marital Background: The parties were married on 4 April 1993, out of community of property and under an antenuptial contract. The marriage was still in effect at the time of the application. They had two children, a daughter studying Industrial Psychology and a son pursuing an LLB degree, both living with the plaintiff.
Breakdown of the Marriage: It was commonly accepted that the marriage had irretrievably broken down. The plaintiff had issued summons for divorce on 09 September 2021, to which the defendant had responded with a plea and counterclaim. The trial in the divorce action was still pending. The breakdown of the marriage was attributed to the defendant’s extramarital relationship and adultery, although he claimed the relationship began after the marriage had already broken down. The parties had been separated since March 2021.
Plaintiff’s Financial Position
Income and Loans: The plaintiff claimed she had no significant income, relying only on a small amount of interest from her FNB 7-day notice account. She had received loans totalling R 180,000 from her father after the defendant failed to honour an agreement to pay R 60,000 monthly for her maintenance.
Property and Assets: The plaintiff owned approximately four immovable properties valued at around R 10.5 million. Two of these properties were rented out, with the defendant managing the rentals and paying related expenses. She alleged that the defendant instructed tenants not to pay rent to her following their separation. Her movable assets included a car valued at R 400,000, jewellery worth R 407,000, and a pension interest of R 82,234.82. Additionally, she had investments and bank accounts in various financial institutions, including offshore investments worth $72,481.68 and eight accounts with a total value of R 1,514,334.35.
Liabilities and Debts: The plaintiff owed a substantial debt to the Family Trust and her father, totalling R 1,610,716. She had also taken loans for legal expenses, maintenance, and purchasing a vehicle.
Employment and Lifestyle: At 52 years old, the plaintiff had been unemployed since shortly after her marriage. She claimed the defendant had initially agreed to pay her a monthly maintenance of R 60,000, cover her medical scheme, and pay her cellular fees. During their marriage, the couple enjoyed a high standard of living, including regular local and international holidays, private education for their children, and frequent dining out. The plaintiff alleged that the defendant controlled all family finances and was secretive about his financial affairs.
Current Situation: The plaintiff lamented the loss of her previous standard of living, contrasting it with the defendant’s continued affluent lifestyle. She depended on her father for financial support and had been given a concession by the Family Trust not to pay rent until the divorce was finalized. She argued that her need for maintenance was due to the defendant’s ability to afford it and accused him of using financial pressure to force her into an unfavourable divorce settlement. Her monthly expenses amounted to R 84,000, the same amount she sought in maintenance in the proceedings.
Defendant’s Financial Position and Issues for Determination
Defendant’s Stance on Maintenance: The defendant contested the plaintiff’s claim for maintenance, arguing that she had sufficient means to support herself. He denied allegations of not disclosing his financial status fully. The defendant claimed unemployment due to being declared a delinquent director by the court, asserting this hindered his ability to find work.
Financial Position of Both Parties: The defendant emphasized that the plaintiff was not facing financial difficulties, citing her property portfolio and investments. He alleged that the plaintiff received substantial funds from a Family Trust established by her father, suggesting that she was worth millions due to these payments from the W Trust.
Funding of Family Holidays: Regarding the luxurious holidays the family had enjoyed, the defendant attributed these to the financial support of the plaintiff’s father and his clients, rather than his own contributions.
Issues for Court’s Determination: The court was tasked with resolving several key issues:
- Entitlement and Quantum of Maintenance: The court needed to determine whether the plaintiff was entitled to maintenance and, if so, the amount of maintenance, including her ancillary expenses.
- Annual Escalation: The court had to decide whether to fix an annual escalation rate of 6% for the maintenance.
- Arrear Maintenance: The court was to consider whether the defendant should pay arrear maintenance to the plaintiff in the sum of R 180,000.
Point in Limine: Initially, the defendant raised a point in limine concerning the plaintiff’s locus standi to claim maintenance for adult dependent children. However, this point was correctly abandoned during the court arguments.
Analysis of the Plaintiff’s Claim for Maintenance
Plaintiff’s Argument for Maintenance: The plaintiff argued that she was entitled to maintenance that reflected the lifestyle she had enjoyed while living with the defendant. She highlighted the defendant’s initial agreement to pay her R 60,000 per month post-separation as an acknowledgment of this need.
Critique of Defendant’s Claims: The plaintiff contested the defendant’s assertion that she was receiving substantial payments from the W Family Trust, describing these funds as discretionary and not guaranteed.
Maintenance for Adult Dependent Children: The court observed a lack of evidence supporting the quantification of maintenance for the two adult dependent children. While the defendant was paying maintenance, albeit sometimes late, the proposed amounts lacked substantiation and confirmatory affidavits from the children.
Plaintiff’s Financial Control: The plaintiff claimed the defendant still controlled her finances, despite their separation and marriage out of community of property. The court noted the plaintiff’s lack of experience in handling family finances and the ongoing financial control exerted by the defendant.
Plaintiff’s Investments and Properties: The plaintiff’s significant investment portfolio and property ownership were acknowledged. However, she contended that these assets were not readily liquid and couldn’t be immediately utilized for her maintenance.
Financial Concessions and Struggles: A trustees’ resolution deferring the plaintiff’s rental payments, passed in June 2022, indicated financial struggles. This concession seemed to be a response to her financial difficulties.
Defendant’s Financial Disclosure: The defendant’s reluctance to fully disclose his financial situation was evident. He submitted a Financial Disclosure Form (FDF) without supporting documents, making it challenging to assess his true financial position. This behaviour suggested an attempt to conceal his actual financial status.
Status of Adult Dependent Children and Retrospective Maintenance Claim
Status of Adult Dependent Children:
- The two children from the marriage are adult dependents and full-time university students.
- The plaintiff, as their mother, has the legal standing to seek maintenance for them.
- Legal precedent, as established in Z v Z, emphasises the importance of shielding adult dependent children from parental conflict during divorce and avoiding piecemeal adjudication of maintenance claims.
- The Supreme Court of Appeal (SCA) in AF v MF highlighted the vulnerability of young adult dependents during parental divorce, stressing the need for their financial and emotional support.
Defendant’s Responsibility and Arrangements:
- The defendant acknowledges his responsibility to maintain the children, conditional upon the sale of a property in Stellenbosch.
- He has separate maintenance arrangements with the children, which the plaintiff acknowledges, though she notes his payments are sometimes late.
- Given the children’s age and competence, they can make arrangements directly with the defendant.
- The court finds no established need for maintenance for the adult dependent children in this case.
Applicant’s Claim for Retrospective Maintenance:
- The defendant initially agreed to pay R 60,000 per month in maintenance post-separation but ceased payments, claiming a change of mind.
- The plaintiff seeks arrears of R 180,000.
- Legal precedent (AF v MF) addresses the common law principle ‘in praeteritum non vivitur’ (one does not live in arrear), which bars claims for arrear spousal maintenance unless the spouse incurred debts for maintenance.
- The court acknowledges that the plaintiff incurred debts to maintain herself, as evidenced by the Family Trust’s exemption from rent, treated as a loan.
- The court concludes that the plaintiff is entitled to recover the arrears from the defendant, as she demonstrated the debts were incurred for her maintenance.
Legal Framework and Principles Governing Rule 43 Applications
Rule 43(1)(a) and Its Application:
- Rule 43(1)(a) specifically addresses situations where a spouse seeks interim relief during a pending divorce, particularly for maintenance pendente lite.
- This rule is applicable exclusively to ongoing divorce proceedings between spouses.
Nature of Maintenance Pendente Lite:
- The principles governing maintenance pendente lite applications were outlined in Taute v Taute (1974).
- Such maintenance is inherently interim and temporary, lacking the precision and exactitude possible in cases with detailed evidence.
- The court emphasised that each case under Rule 43 must be judged based on its unique facts, as demonstrated in cases like Rose v Rose and Griffith v Griffith.
Procedural Principles in Rule 43 Applications:
- Greenspan v Greenspan (2000) clarified the procedural aspects of Rule 43 applications.
- Rule 43 is designed to provide an inexpensive and efficient procedure for granting interim relief.
- Parties are restricted in the amount of material they can present to the court, with an active discouragement of lengthy affidavits and extensive annexures.
- This contrasts with ordinary motion proceedings, where there are fewer limitations on the number of affidavits and the extent of detail in the papers.
- Rule 43 applications are tailored for interim relief in divorce cases, focusing on maintenance pendente lite.
- The nature of these applications is temporary and less detailed compared to full trial proceedings.
- Each case under Rule 43 is unique and must be evaluated on its specific facts and circumstances.
- The procedural approach under Rule 43 emphasizes efficiency, cost-effectiveness, and brevity in the submission of evidence and affidavits.
Conclusion and Court Order in Rule 43 Application
Establishment of Maintenance Pendente Lite:
- The court reaffirmed that a spouse is entitled to maintenance pendente lite, contingent upon the establishment of a need for such maintenance.
- The standard for determining maintenance pendente lite is based on the couple’s standard of living prior to the commencement of divorce proceedings.
Financial Dynamics During Marriage:
- The defendant’s control over family finances during the marriage and his cessation of maintenance payments, not due to the plaintiff’s improved financial situation but due to a change of mind, were key considerations.
- The defendant’s offer to maintain the plaintiff on his medical aid and cover cellular phone and data costs was seen as an acknowledgment of the plaintiff’s need for maintenance.
Court’s Role in Determination:
- The court emphasized its role in determining the need for maintenance without the exactitude required in a full trial.
- The assets possessed by the plaintiff, which existed prior to their separation, were noted as part of the defendant’s maintenance responsibilities.
- The case of Glazer v Glazer (1959) was cited, establishing that a spouse is entitled to support commensurate with the couple’s social position, lifestyle, and financial resources.
- Permission for both parties to file additional affidavits as per Rule 43(5) of the Uniform Rules of Court.
- Maintenance order for the plaintiff, including:
- R 84,000.00 monthly maintenance.
- R 180,000.00 in arrears.
- Coverage of medical aid premiums and excess medical expenses.
- Payment of cellular and data costs.
- Payment responsibilities for properties in Poortview, North Willowbrook, and Groot Brakrivier.
- Reimbursement for medical and dental expenses not covered by medical aid.
- Defendant to cover the costs of the application, including Senior Counsel fees.
- The court ordered the defendant to pay substantial maintenance to the plaintiff, reflecting the lifestyle and financial status enjoyed during the marriage.
- The order includes monthly maintenance, arrears, medical expenses, and property-related costs, affirming the plaintiff’s need for financial support pending the finalization of the divorce.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.
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